Citation NR: 9734387
Decision Date: 10/09/97 Archive Date: 10/16/97
DOCKET NO. 92-00 995 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to an increased rating for residuals of a
stress fracture of the left lower extremity, currently
evaluated as 10 percent disabling.
2. Entitlement to an increased rating for residuals of a
stress fracture of the right lower extremity, currently
evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Associate Counsel
INTRODUCTION
The veteran had active military service from April 1985 to
November 1985.
This matter comes before the Board of Veteransí Appeals
(Board) from a December 1990 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California. In October 1992, the case was
remanded to the RO for further development. While the case
was in remand status, the claims folder was transferred to
the RO in Waco, Texas and increased evaluations of 10 percent
were assigned for the disabilities at issue. The veteran has
continued his appeal.
In April 1995, the veteran was informed that his appeal may
have been tampered with by a former Board employee, and was
notified of his right to inspect his claims file to
independently determine to what extent his claims file had
been subject to tampering. The veteran apparently reviewed
his claims file in November 1995.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that the RO erred in not
granting the benefits sought on appeal. The veteran
maintains, in substance, that the evaluations assigned for
the residuals of his stress fractures of his lower
extremities do not accurately reflect the severity of the
disabilities. Therefore, a favorable determination is
requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
ß 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteranís claim for an evaluation in
excess of 10 percent for residuals of a stress fracture of
the left lower extremity. It is further the decision of the
Board that the preponderance of the evidence is against the
veteranís claim for an evaluation in excess of 10 percent for
residuals of a stress fracture of the right lower extremity.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteranís appeal has been obtained by the
RO.
2. The stress fractures of both of the veteranís lower
extremities have healed, and the veteran currently manifests
full range of bilateral knee motion and full knee strength,
with no objective evidence of knee instability.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 10 percent
for residuals of a stress fracture of the left lower
extremity have not been met. 38 U.S.C.A. ßß 1155, 5107 (West
1991); 38 C.F.R. ß 4.71a, Diagnostic Code 5262 (1996).
2. The criteria for an evaluation in excess of 10 percent
for residuals of a stress fracture of the right lower
extremity have not been met. 38 U.S.C.A. ßß 1155, 5107 (West
1991); 38 C.F.R. ß 4.71a, Diagnostic Code 5262 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that the veteranís claims are well
grounded within the meaning of 38 U.S.C.A. ß 5107(a), in that
they are plausible. Further, the Board is satisfied that all
relevant facts have been properly developed and that no
further assistance to the veteran is required to comply with
38 U.S.C.A. ß 5107(a).
In accordance with 38 C.F.R. ßß 4.1, 4.2, 4.41, 4.42 (1996)
and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board
has reviewed all evidence of record pertaining to the history
of the service-connected disabilities. The Board has found
nothing in the historical record which would lead to the
conclusion that the current evidence of record is not
adequate for rating purposes. Moreover, the Board is of the
opinion that this case presents no evidentiary considerations
which would warrant an exposition of remote clinical
histories and findings pertaining to these disabilities.
Briefly, as was noted in the Introduction, the veteranís
service ended in November 1985, at which time he was
medically discharged following an October 1985 Physical
Evaluation Board proceeding. At that proceeding, it was
determined that the veteran was physically unfit for further
training due to bilateral stress reactions or fractures of
his lower extremities. In December 1985, the veteran was
granted service connection for stress fractures of both the
left and right lower extremities, each of which was evaluated
as 10 percent disabling. Upon routine reevaluation, the
veteranís disabilities were determined to be noncompensably
disabling, and the veteranís total disability rating was
reduced to 10 percent, based on the provisions of 38 C.F.R.
ß 3.324 (1996). In May 1994, the veteran was again granted a
compensable rating for each service-connected disability, and
the RO accordingly evaluated the residuals of his stress
fractures of his left and right lower extremities as 10
percent disabling each, for a combined disability rating of
20 percent. These evaluations have remained in effect since
that time.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (1996). The Board
attempts to determine the extent to which the veteranís
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. ß 1155; 38 C.F.R. ßß 4.1, 4.10 (1996).
Where there is a question as to which of two evaluations
should be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. ß 4.7 (1996).
The RO rated the residuals of the veteranís bilateral stress
fractures of his lower extremities under Diagnostic Code 5262
of the Rating Schedule. This code provides a 10 percent
rating for impairment of the tibia and fibula, where there is
malunion with slight knee or ankle disability, a 20 percent
evaluation if there is malunion with moderate knee or ankle
disability, and a 30 percent evaluation for malunion with
marked knee or ankle disability. A 40 percent rating is
warranted for impairment of the tibia and fibula if there is
nonunion with loose motion requiring a brace. 38 C.F.R.
ß 4.71a, DC 5262.
Other pertinent Diagnostic Codes within the Rating Schedule
include Diagnostic codes 5257, 5260 and 5261. Under
Diagnostic Code 5257, slight impairment of the knee warrants
a 10 percent evaluation, moderate impairment of the knee
warrants a 20 percent evaluation, and severe impairment of
the knee warrants a 30 percent rating. Under Diagnostic Code
5260, flexion limited to 45 degrees warrants a 10 percent
rating, flexion limited to 30 degrees warrants a 20 percent
rating, and a 30 percent rating is warranted for flexion
limited to 15 degrees. Under Diagnostic Code 5261, a 10
percent rating is assigned for extension limited to 10
degrees, a 20 percent rating is assigned for extension
limited to 15 degrees, and a 30 percent rating is warranted
where extension is limited to 20 degrees.
VA outpatient treatment reports for the period covering
February 1990 to March 1992 indicate that the veteran was
issued pain medication for complaints concerning his lower
extremities, and that he was issued knee braces. Physical
examination revealed the veteranís gait to be within normal
limits.
The veteran underwent an orthopedic evaluation in April 1990,
by the Carmel Evaluation Center. At that time, the veteran
complained of persistent leg pain exacerbated by prolonged
standing and walking. Physical examination revealed full
range of bilateral knee motion and full knee strength,
although some tenderness along the pes anserine bursa and
proximal tibia was noted. X-rays of the veteranís lower
extremities were negative for any evidence of fracture or
dislocation, periosteal reaction or soft tissue swelling. It
was the examinerís impression that the veteranís complaints
were more consistent with the presence of bursitis than the
residuals of stress fractures.
At his October 1991 VA examination, the veteran exhibited a
good gait, although the examiner did note that the veteran
wore elastic braces on both knees. The veteran manifested
full range of bilateral knee motion, with good alignment and
no instability. Very mild crepitation of the patella on
flexion and extension was noted, but the examiner concluded
that the examination of the veteranís lower extremities was
completely normal.
The veteran was afforded another VA examination in November
1993, at which time the veteran complained of pain in the
anterolateral aspects of the upper tibial area with any
twisting activity, particularly in the medial aspect of the
upper third of both legs. On physical examination, the
examiner reported that the veteranís knees were, clinically,
entirely normal, with full range of motion, no increased
heat, no ligamentous laxity and no crepitation on motion. No
abnormality was palpable in the bone either above or below
the knee joints. The veteran did manifest an area of acute
tenderness in the upper third of the leg just posterior to
the medial aspect of the tibia. However, X-rays of the
veteranís knees were normal, and, since the examiner was
unable to find any evidence of stress fractures of the
veteranís lower extremities, the examiner opined that the
noted tenderness was due to tendonitis or bursitis. The
examiner amended his report in March 1994 to include the
results of a January 1994 bone scan. This bone scan showed a
mild increase in activity in the anterolateral aspects of
both proximal tibias at the region of the tibial tuberosity,
which did not give the typical appearance of stress
fractures. In his addendum, the examiner continued to
maintain that there was an element of tendinitis or bursitis
in the veteranís complaints, but that, in any event, the
veteran had no more than mild to moderate impairment of
function.
At the veteranís August 1996 hearing before a hearing officer
at the RO, the veteran testified that he used leg braces that
were issued to him by VA. The veteran stated that both of
his legs hurt continuously, and that his knees swelled, and
that during periods of swelling his knees buckle. The
veteran further indicated that he requires his leg braces, in
part, because of this instability. The veteran also
indicated that it is very difficult for him to kneel and to
squat, and that his symptoms had become progressively severe
within the last few years.
The veteran was afforded another VA examination in March
1997, at which time he continued to complain of pain in both
legs. The examiner reported that the veteran wore leg braces
for the examination, and that they provided some support and
relief of his symptoms. Physical examination revealed good
alignment of the legs, with the absence of any swelling of
the knees or pain on movement. The examiner reported that
the veteranís ligaments were stable. The veteran did
manifest marked tenderness of the area below the knees.
However, the examiner ordered another bone scan and, in an
April 1997 addendum to his report, and based on the results
of the bone scan which showed that the veteranís stress
fractures had healed, opined that the tenderness was not
residual of the veteranís service-connected stress fractures.
The Board observes that the evidence of record demonstrates
that the veteranís disability picture for his service-
connected residuals of stress fractures of the lower
extremities most nearly approximates the criteria for a 10
percent evaluation under DC 5262 for each lower extremity. A
review of the medical records reveals that, while there is
objective evidence of marked tenderness bilaterally along the
veteranís tibia, the most recent bone scan and X-rays studies
disclose that the veteranís stress fractures have healed, and
that the veteran manifests a full range of bilateral knee
motion and full knee strength. In addition, of record are
several medical opinions which ascribe the etiology of the
veteranís tenderness to a source unrelated to the veteranís
service-connected disabilities, and there is no medical
opinion of record which describes the manifested tenderness
as residual of the veteranís stress fractures. Further,
there is no objective evidence of any pain on motion,
swelling, instability or weakness of the veteranís knees.
When all of the evidence, including the objective medical
findings showing that the veteranís stress fractures have
healed, and that he manifests no knee instability or
weakness, is considered, there simply is no reasonable
support for a finding that the residuals of the veteranís
stress fractures of either lower extremity are manifested by
symptoms indicative of more than slight impairment of
function.
Similarly, the evidence of record does not support a
characterization of the veteranís service-connected
disabilities as analogous to more than slight impairment of
the knee under DC 5257; to a limitation in flexion of the
knee to 30 degrees under DC 5260; or to a limitation in the
extension of the leg to 15 degrees or more, under DC 5261.
In light of these clinical findings, the Board concludes that
the evidence supports a continuation of the currently
assigned 10 percent evaluation for each lower extremity.
Accordingly, an increased evaluation for the residuals of
each of the veteranís service-connected stress fractures of
his lower extremities is not warranted.
With respect to the veteranís complaints of pain and weakness
associated with his knees, the Board notes that a higher
rating may be awarded based on functional loss due to pain,
under 38 C.F.R. ß 4.40 (1996), or based on weakness,
fatigability or incoordination of the knee, pursuant to
38 C.F.R. ß 4.45 (1996). See DeLuca v. Brown, 8 Vet.App. 202
(1995). However, the record contains several medical
opinions attributing the tenderness of the veteranís legs to
a source unrelated to the veteranís service-connected
disabilities, and there is no medical opinion which indicates
that pain is a residual of the stress fractures he incurred
in service. With respect to the veteranís complaints of
instability and weakness associated with both knees, the
Board notes that, despite the issuance to the veteran of knee
braces by VA, the most recent medical examinations have
specifically noted the absence of any instability of his
knees. In light of these findings, as well as the bone scan
and X-rays studies demonstrating that the veteranís stress
fractures have healed, the Board finds that the veteranís
complaints are not supported by adequate pathology of
disability and are refuted by the reported medical findings.
The objective medical findings recorded during an official VA
examination are of greater probative value than the veteranís
unsupported statements advanced on behalf of his claim. See
Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992) (a lay
person is not competent to provide probative evidence as to
matters requiring expertise derived from specialized medical
education, training, or experience). Hence, the Board finds
that the veteran has not submitted any competent medical
evidence demonstrating such disabling pain, weakness,
fatigability or incoordination as would constitute functional
impairment warranting a higher evaluation under the criteria
of 38 C.F.R. ßß 4.40 and 4.45.
Finally, the Board finds that the veteranís disabilities are
not so unusual or exceptional as to render impractical the
application of the regular schedular standards. 38 C.F.R. ß
3.321(b)(1). The current evidence of record does not reflect
frequent periods of hospitalization because of the service-
connected disabilities, or interference with employment to a
degree greater than that contemplated by the regular
schedular standards which are based on the average impairment
of employment. Thus, the record does not present an
exceptional case where the veteranís currently assigned 10
percent ratings under DC 5262, are found to be inadequate.
See Moyer v. Derwinski, 2 Vet.App. 289 (1992); see also Van
Hoose v. Brown, 4 Vet.App. 361, 363 (1993) (noting that the
disability evaluation rating itself is recognition that
industrial capabilities are impaired). Accordingly, in the
absence of such factors, the Board finds that the criteria
for submission for assignment of an extraschedular rating
pursuant to 38 C.F.R. ß 3.321(b)(1) are not met. See
Bagwell v. Brown, 9 Vet.App. 337, 339 (1996); Shipwash v.
Brown, 8 Vet.App. 218, 227 (1995).
ORDER
Entitlement to an increased rating for residuals of a stress
fracture of the left lower extremity is denied.
Entitlement to an increased rating for residuals of a stress
fracture of the right lower extremity is denied.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -